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Bynum v. State

Court of Appeals of Arkansas, Division I

October 3, 2018

JAMES NEAL BYNUM APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE SCOTT COUNTY CIRCUIT COURT [NO. 64CR-14-104] HONORABLE JERRY RAMEY, JUDGE

          Ernie Witt, for appellant.

          Leslie Rutledge, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.

          KENNETH S. HIXSON, JUDGE

         Appellant James Neal Bynum appeals after the Scott County Circuit Court entered an order denying his petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1. Mr. Bynum raises three points for reversal. Mr. Bynum first argues that the trial court erred in finding that his petition was untimely filed 120 days after the mandate from his direct appeal was issued by the court of appeals. Next, Mr. Bynum contends that the trial court erred in ruling that his trial counsel, who also represented Mr. Bynum in the direct appeal, was not ineffective. Finally, Mr. Bynum argues that the trial court erred in denying his petition without conducting a hearing. We reverse and remand for a new trial because Mr. Bynum was denied effective assistance of counsel.

         Mr. Bynum was charged with ten counts of fourth-degree sexual assault committed against A.H. He was also charged with one count of second-degree sexual assault committed against T.H. and one count of second-degree sexual assault committed against C.P. A jury trial was held, wherein each of the victims testified.

         A.H. testified that he was twenty-six years old at the time of the trial. A.H. stated that, when he was fourteen, he was friends with one of Mr. Bynum's sons. Over the course of the next year, he would spend the night at the Bynums' house and sometimes accompany them on trips. A.H. stated that Mr. Bynum "seemed like a cool guy" at first and that he built a trust with A.H. A.H. stated that one night when he was staying at the Bynums' house, he was awakened by Mr. Bynum, and Mr. Bynum forced his hands down A.H.'s pants. A.H. indicated that this was the first of about twenty to fifty times that Mr. Bynum sexually assaulted him. A.H. stated that it would happen when they went camping and at any time Mr. Bynum could get him alone. A.H. recounted another occasion when they had traveled to a gun show in Tulsa, Oklahoma, and Mr. Bynum performed oral sex on him in a hotel room.

         T.H. testified that he had been friends with another one of Mr. Bynum's sons in 2013 when T.H. was eleven years old. T.H. lived at the Bynums' house for about four weeks and would go with them on vacations. T.H. testified that during that time, Mr. Bynum put his hands in T.H.'s pants and touched his "private parts" on two occasions. The first time it happened in a hotel room during a vacation trip with Mr. Bynum's family in Hot Springs. The next time it occurred in Mr. Bynum's home after T.H. had fallen asleep on a recliner with Mr. Bynum.

         C.P. testified that he was twenty-four years old at the time of the trial and that he was friends with one of Mr. Bynum's sons. C.P. met Mr. Bynum after he had begun playing basketball in the Boys and Girls Club when he was ten years old. C.P. also played basketball on Mr. Bynum's team from age eleven through age fourteen. During that time, C.P. would join Mr. Bynum and other children on hunting trips, to gun shows, and to the zoo. C.P. testified that he woke up in the middle of the night at Mr. Bynum's home to Mr. Bynum touching him in his shorts and putting his hand on his "privates." C.P. testified that a second incident took place in a hotel room in Tulsa, Oklahoma, after having traveled there for a gun show. He testified that he woke up on that occasion to Mr. Bynum trying to perform oral sex on him.

         The jury convicted Mr. Bynum of ten counts of fourth-degree sexual assault and two counts of second-degree sexual assault. Mr. Bynum was sentenced to prison terms of six years for each of the ten fourth-degree sexual-assault convictions and twenty years for each of the two second-degree sexual-assault convictions, to be served consecutively for a total of 100 years in prison. This was the maximum sentence allowable for these twelve convictions.

         On direct appeal to this court, Mr. Bynum argued that the ten counts of fourth-degree sexual assault against A.H. should be reversed and dismissed as time-barred by the statute of limitations. The State did not contest this issue and conceded error. We agreed, and we reversed and dismissed those ten convictions. Bynum v. State, 2017 Ark.App. 41, 511 S.W.3d 860. We held that the charges were filed after the applicable statute of limitations, which required the charges to be filed within three years of A.H.'s eighteenth birthday, had expired. Although Mr. Bynum had failed to make a statute-of-limitations challenge before the trial court, that issue may be considered for the first time on appeal because it implicates a court's jurisdiction to hear the case and cannot be waived. In the direct appeal, Mr. Bynum also challenged his second-degree sexual-assault conviction against T.H. and C.P., arguing that the trial court lacked jurisdiction over those offenses because they occurred outside the trial court's jurisdiction, and also that the convictions were not supported by substantial evidence. We held that the trial court did have jurisdiction over those offenses because, while separate incidents of criminal conduct occurred in Hot Springs and in Tulsa, Oklahoma, both T.H. and C.P. testified that they had also been sexually assaulted by Mr. Bynum in his home, and there was nothing to suggest that his home was located anywhere but in Scott County. We further held that substantial evidence supported those convictions. Thus, we reversed and dismissed Mr. Bynum's ten convictions for fourth-degree sexual assault, and we affirmed his two convictions for second-degree sexual assault.[1]

         After our mandate was issued, Mr. Bynum filed a petition for postconviction relief pursuant to Rule 37.1.[2] In support of his petition, Mr. Bynum alleged that he received ineffective assistance of counsel for six reasons. However, because he argues only two of these on appeal, we limit our analysis to these two claims:

• At trial, counsel failed to make a statuteof-limitations challenge to the ten counts of fourth-degree sexual assault committed against A.H. Had counsel raised the issue, the trial court would have dismissed the ten counts related to A.H., in which case A.H. would not have been allowed to testify or at least there would have been a limiting instruction. This failure by counsel resulted in prejudice because Mr. Bynum was sentenced to consecutive maximum prison terms on all counts.
• Counsel allowed both T.H. and C.P. to testify about incidents that occurred outside the trial court's jurisdiction. One of these occurred in Tulsa, Oklahoma, and the other in Hot Springs. Counsel was ineffective for not requesting a limiting instruction when the witnesses testified about those events. Without evidence of these events that occurred outside the trial ...

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